Key Takeaways

  • You must act quickly to file a patent application if you want to stop someone else from patenting your invention.
  • In the U.S., the first inventor to file generally gets the rights, not the first to invent.
  • Public disclosure can start a one-year grace period; if you don’t file within that time, you lose protection.
  • Building a strong record—notes, diagrams, prototypes—can help prove inventorship if challenged.
  • A provisional patent application can temporarily protect your idea while giving you 12 months to refine and file a full application.
  • Patent searches are critical to confirm novelty and avoid wasting resources.
  • You may file on your own, but complex inventions often require an attorney.
  • Patents can be assigned, licensed, or purchased, providing flexibility even if you didn’t file first.

Can someone patent your invention? According to United States patent law, anyone who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent." So the short answer is yes. If you don't patent it first, someone else can!

What can be Patented?

An idea can not be patented. To obtain a patent, the idea must be presented in one of the following ways:

  • A new way of doing something
  • A piece of equipment
  • An article you manufactured
  • A new pharmaceutical drug
  • A new type of plant

To protect your rights to an invention, you must meet the following guidelines and obtain a patent:

  • Must be eligible for a patent
  • Must be novel or new
  • The invention or design must be useful in some way or show utility
  • Can not be obvious or common knowledge to anyone skilled in said field

Documenting Your Invention

To strengthen your rights, keep detailed records of your invention process. Maintain a bound notebook or secure digital file with dated entries, sketches, test results, and witness signatures. Building a prototype and documenting changes can further establish proof of inventorship. These records may help if disputes arise over whether someone else tried to patent your invention.

Can Anyone Else Patent My Invention After I Disclose?

If another person has the same idea as you and files their application first, they can be awarded the patent instead of you. Someone can also make improvements to your invention and file a separate patent application for that improvement. Unlike other countries, the U.S. makes it possible for an inventor to get a patent even after publication if within the one-year grace time.

Take these simple steps to protect your invention:

  • File a patent application first, then tell others about your invention
  • If you do publish, make it public in any and all ways possible

Filing Provisional Applications

One of the best ways to secure rights early is filing a provisional patent application. This lower-cost option establishes a filing date and gives you 12 months to refine your invention before submitting a full nonprovisional application. Many inventors use this as a protective step while exploring the market or seeking investors.

Can Someone Patent Another Person's Idea?

The only way you can sue for patent infringement is if you have a patent through the USPTO.

  • 102(f) states that in order to apply for a patent, you must be the inventor. Proving this can be difficult and costly.
  • 102(a) states if your invention was published prior to someone else applying for a patent, it would be considered prior art and invalidate the application.
  • If you published more than a year prior to their patent application, it becomes invalid, regardless of when it was invented. As long as you can prove when publication date occurred, this is relatively easy to prove.

Conducting a Patent Search

Before filing, conduct a patent search to confirm that your idea is truly novel. Resources include the USPTO’s Patent Public Search, Google Patents, and commercial databases. A search helps you determine whether your invention overlaps with “prior art” and prevents wasted effort. While you can do this yourself, hiring a professional often uncovers more relevant results.

An Issued Patent vs a Published Patent Application

You can determine if you are looking at an issued patent or a published patent application by their serial number. Published patent applications will have a serial number that includes the application publish year followed by eight numbers. Issued patents are generally seven numbers long and do not identify a year.

First-to-File System in the U.S.

Since 2013, the U.S. has followed a first-to-file system rather than first-to-invent. This means whoever files an application first—regardless of who had the idea first—generally secures the patent rights. If you hesitate to file, someone else could submit first and block your rights, even if you can prove you invented earlier.

Determining If A Patent is Active

It is important to determine if the patent you are looking at is still active. Many patents are expired or abandoned. Determining if a patent is active or expired can be challenging due to various applicable dates associated with them. To accurately determine if a patent is active or not, it is best to seek the services of a professional.

Costs of Filing a Patent

Filing fees vary depending on whether you are a small entity, micro entity, or large company. Beyond the USPTO filing fees, inventors should budget for drawing preparation, search reports, and potential attorney costs. While it is possible to file on your own to save money, complex inventions often require professional legal help to avoid costly mistakes.

Confirming Claims

Claims can be difficult to understand so you may want to consult with a patent attorney. If they find the patent claim is not read on the idea, they may write a clearance opinion which can protect you from being responsible for punitive damages if you are found to have infringed on a patent.

International Patent Protection

A U.S. patent only protects your rights within the United States. If you want to stop others from exploiting your invention abroad, you may need to pursue international protection under agreements like the Patent Cooperation Treaty (PCT). This allows you to file a single application and later seek rights in multiple countries. Timing is critical, as most foreign filings must be made within 12 months of your U.S. application.

Assignments and Licenses

If someone else does hold a patent on your invention but is not currently utilizing it, you may be able to license it for a share of equity or profits made from the patented invention. A license can be issued one of two ways:

  • If the license is non-exclusive, other licenses are able to be granted, possibly to your competitors.
  • If you have an exclusive license, no other licenses will be granted.

Another option is to offer to purchase the patent from the current holder. This can be expensive, but may provide many advantages, especially where future investors are concerned. The expense of purchasing an existing patent also removes any waiting periods and fees associated with filing and obtaining your own patent. There are benefits to finding creative ways to resolve patent situations.

Alternatives if You Did Not File First

Even if someone else patents an invention similar to yours, you may have options:

  • Negotiate a license to continue using the invention legally.
  • Challenge the patent’s validity by proving prior public use or publication.
  • Purchase the patent if the owner is open to selling.
    Exploring these strategies can keep your invention alive in the marketplace even if you missed the first filing opportunity.

Frequently Asked Questions

  1. If I tell people about my invention, can they patent it?
    Yes, unless you file first. Public disclosure starts a one-year clock in the U.S., after which you lose rights.
  2. What’s the fastest way to protect my invention?
    Filing a provisional patent application is the quickest and least expensive way to secure an early filing date.
  3. Can I patent my invention without a lawyer?
    Yes, many inventors file on their own. However, complex inventions or unclear claims usually benefit from an attorney’s guidance.
  4. Does a U.S. patent protect my invention worldwide?
    No. U.S. patents only apply domestically. To protect your invention abroad, you must file in other countries or use international treaties.
  5. What if someone patents my invention before me?
    You may need to negotiate a license, purchase the patent, or challenge its validity if you can prove earlier public disclosure.

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